Attorney General John Ashcroft seeks to further broaden his department's power by scrutinizing judges who hand down lighter sentences than federal guidelines recommend.
Published August 12, 2003
Under John Ashcroft, the Justice Department is all about expanding and consolidating power. The attorney general won passage of the USA Patriot Act, giving his department substantial new power to conduct searches with little or no judicial oversight; he has undermined the authority of states to legalize medical marijuana and doctor-assisted suicide; and he has taken discretion away from local prosecutors to determine whether to seek the death penalty. Ashcroft's latest move is to direct U.S. attorneys to report federal judges who hand down sentences that are lighter than those recommended by federal guidelines. This is Ashcroft's way of trying to intimidate judges who believe there is room for compassion and proportionality in our legal system.
In an internal memorandum sent to federal prosecutors on July 28, Ashcroft says department attorneys have an "affirmative obligation" to oppose sentences when judges depart from federal sentencing guidelines. The department defends this as an attempt to ensure uniformity - as a way to prevent two defendants charged with the same crime from receiving disparate sentences. But in truth this is just another attempt to undermine the independence of the judiciary.
"A blacklist of judges," is how U.S. Sen. Edward Kennedy, D-Mass., aptly characterized the directive in the New York Times. If judges know a lenient sentence will result in their names being added to a list of judges Congress might want to scrutinize, they may simply put their better judgment aside and conform to the guidelines.
Ashcroft's memorandum is in response to the Feeney amendment, a measure introduced by U.S. Rep. Tom Feeney, R-Oviedo, Florida's former House speaker, who was known for his fractious and vindictive relations with the state judiciary. The amendment includes a number of provisions to limit the discretion of federal judges, including one that enhances the ability of federal appeals courts to set aside lenient sentences. According to Feeney, the amendment was written by officials in the Justice Department. It was signed into law in April as part of a broader measure.
All this fuss over sentencing would suggest there is an epidemic of leniency. This is simply not true. While departures from the federal guidelines have been slowly increasing, about half have been granted at the request of prosecutors. In fiscal year 2001, only 50 incidents of downward departures were appealed nationally, indicating that local federal prosecutors have not regarded leniency as much of a problem.
Ashcroft's move comes at a time when a growing number of voices within the system, including U.S. Supreme Court Justice Anthony Kennedy, say federal sentences are simply too harsh. In a recent speech before the American Bar Association, Kennedy urged that group to lobby Congress for the repeal of mandatory minimums.
"Our resources are misspent, our punishments too severe, our sentences too long," said Kennedy, a Reagan appointee who often votes with the court's conservative justices. "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust."
Unlike the Justice Department under Attorney General Janet Reno, who decentralized authority and encouraged independence among local prosecutors, Ashcroft wants all power to flow to and from him. He apparently trusts neither federal judges nor his own prosecutors in the field. The Feeney amendment gives Ashcroft another weapon for his assault on an independent judiciary.
One of the most important questions in next year's election is whether President Bush, if re-elected, plans to keep John Ashcroft around for four more years.
